Judgement

MUDHOLKAR, J. : This is an appeal by special leave against an order of the Deputy. Custodian General, Evacuee Property dated September 12, 1960 holding that one Zarina who migrated to Pakistan in the year 1949 had 7/48th interest in certain specified items of property left by her father Khan Bahadur Ahmed Alladin who died on December 21, 1954. The appellants before us are the widow and the two sons of this gentleman whom we shall hereafter refer to as Khan Bahadur.

2. After his death proceedings were initiated by the Custodian of Evacuee Property, Hyderabad to declare the share of Zarina in the properties left by her father as evacuee property. Pursuant thereto a notice dated February 17, 1955 under S.7 of the Administration of Evacuee Property Act, 1950 was issued by the Senior Assistant Custodian and served on the firm of M/s. Khan Bahadur Ahmed Alladin & Sons stating that Zarina was an evacuee and as all properties belonging to her were evacuee properties including her share in the properties mentioned in the said notice the Custodian would hold an enquiry on March 2, 1955 in the matter. A similar notice bearing the same date was served on Noorbanu, the widow of the Khan Bahadur.

3. On March 2, 1955 a preliminary objection was lodged by the appellants before the Senior Assistant Custodian in which they challenged the validity of notice and made a request that this question be tried as a preliminary issue. The Senior Assistant Custodian by his order dated March 3, 1955 overruled the preliminary objection and set down the matter for March 10, 1955 for recording evidence.

4. Against the order the appellants preferred a writ petition in the former High Court of Hyderabad on or about March 10, 1955. This was dismissed on the ground that the appellants had a remedy under the Administration of Evacuee property Act by way of an appeal against the order of the Custodian. Accordingly the appellants filed an appeal before the additional Custodian of Evacuee Property. The appeal was dismissed on April 4, 1955 whereupon the appellants preferred a second writ petition before the High Court issue of a writ of prohibition against the Assistant Custodian from continuing the proceedings and holding any further enquiry in the matter and for quashing those proceedings by issuing a writ of certiorari. This writ petition was dismissed by the High Court on September 15, 1955.

5. In the meantime the Senior Assistant Custodian issued a notice under S. 8 (4) of the Act calling upon the first appellant to surrender possession of the 7/48th share of Zarina in to properties mentioned in that notice on or before March 29, 1955. This notice was sent on March 14, 1955. On March 21, 1955 he issued a notification stating that all the properties belonging to Zarina, including her 7/48th share left by her father and certain other properties were evacuee properties and that they were vested in the Custodian. On that very day a notice under S. 7 of the Act was issued and served on the firm of M/s. Khan Bahadur Ahmad Alladin and Sons stating that as Zarina was an evacuee and properties belonging to her were evacuee properties, including her share in the properties specified in the said notice, the Custodian would hold an enquiry on April 2, 1955 in the said Matter. A notice to this effect was also issued to the first appellant. A third notice was issued on April 6, 1955 also under S. 7 stating the same things and stating also that an enquiry will be held by the Custodian on April 15, 1955. On April 6, 1955 a similar notice was served on the first appellant. Thereupon an enquiry was held by the Senior Assistant Custodian.

6. The contentions raised by the appellants at the enquiry were briefly these. The family belongs to the Khoja sect of Muslims and in the matter of succession the Khojas being governed by the Hindu law a Khoja is competent to make a will disposing of his property. According to them the Khan Bahadur executed a will on September 6, 1948 whereu